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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11039
Non-Argument Calendar
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D.C. Docket No. 6:16-cr-00145-PGB-GJK-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL MICHALAK,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(November 3, 2017)
Before TJOFLAT, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
Michael Michalak appeals his 440-month sentence, a variance above the
guideline range. He received his sentence after pleading guilty to three counts of
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aiding and abetting the transportation of child pornography, which violated 18
U.S.C. § 2252A(a)(1), (b)(1)–(2), and three counts of distribution of child
pornography, in violation of 18 U.S.C. § 2252A(a)(2), (b)(1). Michalak argues
that the District Court abused its discretion and imposed a substantively
unreasonable sentence by failing to consider his age, physical health, or life
expectancy in setting the sentence. While the District Court did not discuss
Michalak’s age or physical health, it considered such information when weighing
the factors in 18 U.S.C. § 3553(a). It imposed a sentence that met the § 3553(a)
goals and had support in the record. Thus, the District Court did not abuse its
discretion. We affirm.
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Rosales-Bruno, 789 F.3d 1249, 1255 (11th Cir. 2015).
“A district court abuses its considerable discretion and imposes a substantively
unreasonable sentence only when it (1) fails to afford consideration to relevant
factors that were due significant weight, (2) gives significant weight to an improper
or irrelevant factor, or (3) commits a clear error of judgment in considering the
proper factors.” Id. at 1256 (quotation omitted). A sentence outside the guidelines
range must not be presumed unreasonable. Id. at 1255. The party challenging the
sentence must establish that the sentence is unreasonable in light of the entire
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record, the § 3553(a) factors, 1 and the deference afforded to the district court. Id.
at 1256. We vacate a sentence only upon a “definite and firm conviction” that the
district court clearly erred in weighing the § 3553(a) factors, thus arriving at a
sentence “outside the range of reasonable sentences dictated by the facts of the
case.” United States v. Osorio-Moreno, 814 F.3d 1282, 1287 (11th Cir. 2016).
The district court needs a sufficiently compelling justification for sentences
outside the guidelines range. United States v. Irey, 612 F.3d 1160, 1186–87 (11th
Cir. 2010) (en banc). In determining this, we give deference to the district court’s
decision that the § 3553(a) factors justified the variance. Id. at 1187. The district
court need not state or discuss each factor. United States v. Gonzalez, 550 F.3d
1319, 1324 (11th Cir. 2008). It is enough that the district court considered the
defendant’s argument and the § 3553(a) factors. Id.
Here, Michalak fails to establish that his sentence is unreasonable. The
District Court did not expressly mention his health conditions, age, or life
expectancy during sentencing. It is not required to do so. See Gonzalez, 550 F.3d
at 1324. The District Court read Michalak’s briefs that contained the arguments
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The sentencing factors in § 3553(a) include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant, (2) the need for the sentence to
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense, (3) the need for the sentence to deter criminal conduct, (4) the need
to protect the public from further crimes of the defendant, (5) the need to provide the defendant
with necessary education or vocational training, medical care, or correctional treatment, (6) the
kinds of sentences available, and (7) the applicable guideline range. 18 U.S.C. § 3553(a).
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about his age and health. It considered the § 3553(a) factors, including the nature
and circumstances of the offense and the history and characteristics of the
defendant. The District Court emphasized his history of sexual abuse of his sisters
and daughters, his interest in child pornography, his interest in having sex with
children, and his belief that sexual relationships with children are not harmful. It
presumably considered Michalak’s arguments on his age and health, and found that
they did not deserve weight given the severity of the crimes. Such a determination
falls within the District Court’s discretion. Indeed, given the conduct in issue, it is
doubtful that age and health considerations are factors deserving of “due
significant weight.” Rosales-Bruno, 789 F.3d at 1256.
The record supports the District Court’s weighing of the § 3553(a) factors,
and sufficiently justifies the upward variance. The information in the PSI and
victim impact statements, the testimony of FBI Special Agent Kaufman, and the
psychosexual evaluation and risk assessment support the conclusion that a 440-
month sentence was sufficient to achieve the purposes of sentencing. The facts
before the District Court—including Michalak’s prior sexual abuse of children, his
willingness to travel to have sex with a child, the large amount of child
pornography he shared, and his sexual desires and propensities—showed that
Michalak presented a danger to society. His actions caused grievous harm to the
victims of his abuse and to the children depicted in the material he shared. The
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District Court determined that the case required a serious sentence to prevent
Michalak from causing further harm because of his continuing sexual interest in
children. The District Court receives great deference in such determinations. The
facts justify the upward variance.
The District Court neither abused its discretion nor imposed an unreasonable
sentence.
AFFIRMED.
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